Congress defined employee under the
National Labor Relations Act to say that an employee is any employee
and is not limited to employees of a single employer. It was the intent
of Congress that worker rights and labor organizing was to extend
beyond the scope of a single employer, because only in this way could
the bargaining power of employers and employees be equalized. Only
protections based on such a broad definition could permit employees to
overcome the inequality of bargaining power that was created by
corporation law.

The
courts, however, have not only not enforced the plain meaning of the
statute nor the intent of Congress, they have gone so far in some cases
as to define employee as limited to the employees of a single employer.
The common law system of judicial decision-making means that judges
continue to veer farther away from the rights Congress intended to
provide employees. This article explores that legislative history and
current cases pending decision in which the question of the definition
of employee is critical to the outcome.

I'm looking forward to reading this just as soon as I return from Seattle.

The unemployment rate rose from 4.8 to 5.1 percent in March, and nonfarm payroll employment continued to trend down (-80,000), the Bureau of Labor Statistics of the U.S. Department of Labor reported today. Over the past 3 months, payroll employment has declined by 232,000. In March, employment continued to fall in construction, manufacturing, and employment services, while health care, food services, and mining added jobs. Average hourly earnings rose by 5 cents, or 0.3 percent, over the month . . . .

The number of unemployed persons increased by 434,000 to 7.8 million in March, and the unemployment rate rose by 0.3 percentage point to 5.1 percent. Since March 2007, the number of unemployed persons has increased by 1.1 million, and the unemployment rate has risen by 0.7 percentage point.

Over the month, unemployment rates rose for adult men (to 4.6 percent), adult women (4.6 percent), and Hispanics (6.9 percent). The jobless rates edged up for blacks (to 9.0 percent) and whites (4.5 percent), while the rate for teenagers (15.8 percent) was essentially unchanged. The unemployment rate for Asians was 3.6 percent, not seasonally adjusted.

In March, the number of persons unemployed because they lost jobs increased by 300,000 to 4.2 million. Over the past 12 months, the number of unemployed job losers has increased by 914,000 . . . .

The number of persons who worked part time for economic reasons, at 4.9 million in March, was little changed over the month, but has risen by 629,000 over the past 12 months. This category includes persons who indicated that they were working part time because their hours had been cut back or because they were unable to find full-time jobs.

Sen. Edward M. Kennedy is jumping into the middle of an uproar within the gay community whose causes he has long championed.

The Massachusetts Democrat is leading a push in the Senate for a federal ban on job bias against gays, lesbians and bisexuals — but not transsexuals, cross-dressers and others whose outward appearance doesn't match their gender at birth.

"We will strongly oppose it," said Roberta Sklar of the National Gay and Lesbian Task Force. "Leaving transgender people out makes that a flawed movement."

The House in November approved the bill, written by openly gay Rep. Barney Frank, D-Mass., despite strong protests from many gay rights advocates that it didn't cover transgender workers.

"It was made very clear in the fall that most LGBT (lesbian, gay,
bisexual and transgender) organizations, the vast majority of LGBT
organizations, do not want Congress to shove a civil rights bill down
our throat that we don't want," said Mara Keisling, executive director
of the National Center for Transgender Equality.

Some gay rights groups, including the Human Rights Campaign,
supported Frank's bill and the decision not to risk its rejection by
Congress by insisting on immediate transgender protections as well.

"We will continue this work until all members of our community no
longer fear being fired for who they are," said Brad Luna, Human Rights
Campaign communications director.

Kennedy said Senate approval of the bill could pave the way for
extending protections to transgender workers next year, when he hopes
Democrats will increase their numbers in Congress and a Democratic
president supporting gay rights will be in the White House.

Assuming, like I do, that gender identity and expression is about sexual identity, Congress should make clear once and for all, like it did with pregnancy back in 1978, that "sex" under Title VII also includes individuals who have a different gender identity or expression than their anatomical sex. Let's not leave it to the courts to fool around with.

This Article argues that outsiders and
insiders tend to perceive allegations of discrimination through
fundamentally different psychological frameworks. These previously
unrecognized differences have profound legal consequences. A workplace
may be spatially integrated and yet employees who work side by side may
perceive an allegation of discrimination through very different lenses
because of their disparate racial and gender identities. Most implicit
bias legal scholarship has focused on the cognitive processes of
insiders (whites and men) in assessing and evaluating outsiders (people
of color and women). This Article opens a new field of legal
scholarship, and complements the implicit bias literature, by drawing
on empirical studies to explicate the cognitive processes of outsiders
in interpreting potential incidents of discrimination.

Studies show
that blacks and whites are likely to differ substantially in how they
conceive of and define discrimination. White people tend to believe
that widespread expressions of a commitment to racial equality and the
reduction in overt expressions of racist attitudes reflect reductions
in racism, whereas black people tend to believe that racist attitudes
and behaviors have simply become more difficult to detect. While many
whites expect evidence of discrimination to be explicit, and assume
that people are colorblind when such evidence is lacking, many blacks
perceive bias to be prevalent and primarily implicit. Studies have also
revealed that men and women differ significantly in assessing incidents
of sexual harassment. Differences in perception have profound
implications for how our judicial machinery, which consists
predominantly of white male judges, resolves antidiscrimination claims.
Judges are likely to impose their own contingent conceptions of
discrimination, with little or no awareness of the perceptual
limitations shaping their judgments. This Article explores reforms in
the judicial system and in workplaces that could help sensitize both
insiders and outsiders to the other perspective and break down the
rigidity in these clashing mindsets.

I had the pleasure of hearing Russell present, and interacting with him on, this piece at the Seton Hall Employment and Labor Law Scholars' Forum last October and it is truly an exceptional piece. As he states, it is the first paper to draw on empirical work to explore how insiders and outsiders view discrimination through diverse psychological frameworks. Its insights may help to better develop employment discrimination law in the years to come.

BNA's Daily Labor Report (subscription required) has a nice summary of labor and employment bills pending before Congress, and provides an update on their status. Several immigration-related bills dominate the list--many of them Republican-sponsored--but this quote sums up their future: "Senate Republicans are expected to
hit a wall as the Senate Democratic leadership has made no indication
that it would take up any immigration-related bills ahead of the
November elections."

Other bills include the Genetic Nondiscrimination Act, which has broad support but is being held up by an attempt to include a business necessity defense. An attempt to extend unemployment benefits also faces an uncertain future because it may not be dealt with in time. In contrast, the Lilly Ledbetter Fair Pay Act and Fair Pay Restoration Act--which would require wage discrimination statute of limitations to begin running each time an employee receives a paycheck--has passed the House and is considered a high priority among Senate Democrats.

From the state court of appeals in Arkansas, as reported by CCH Work Week:

The whole unsavory incident gathered a fair amount of notoriety: Wal-Mart fired a global services manager for engaging in an improper affair with a coworker, in violation of the company's fraternization policy, after it hired an investigator to follow the couple down to Central America to catch them in a clandestine encounter.

The discharged employee filed suit, alleging breach of contract and public-policy wrongful discharge, contending he was actually fired for reporting inhumane working conditions in Wal-Mart's factories abroad and for disclosing the company's attempts to strong-arm employees into altering the results of their factory-monitoring findings. But even if it was true that Wal-Mart's annual report contained deceptive information about factory working conditions, as the employee alleged, "Wal-Mart's purported failure to follow its private, internal policies or the labor laws of foreign countries does not implicate the public policy of this state," an Arkansas appeals court held, affirming summary judgment for the retailer.

The case is Lynn v. Wal-Mart Stores, Inc. (Ark App. Ct. Mar. 19, 2008) (Westlaw Subscription required). Actually, more lurid than surprising since it is common in public policy tort cases for states only to find instances of public policy in constitutional provisions, statutes, and sometimes, in decisional case law.

Still, the whole idea of Wal-Mart hiring an investigator to follow an employee to Central America is not only unnnerving, but also begs the question of whether that same money can be better put to lower employee health insurance premiums.

When I say obesity bias, I am not referring to those morbid obesity situations which chronically affect an individual's health and may be covered under the ADA. Rather, I refer to generally overweight people who can make the argument that they have been historically discriminated against and harassed.

For support for this argument, consider this recent Yale report on the subject, with its surprising findings (via CCH Workweek):

Discrimination against overweight people—particularly women—is as common as racial discrimination, according to a study by the Rudd Center for Food Policy and Obesity at Yale University. "These results show the need to treat weight discrimination as a legitimate form of prejudice, comparable to other characteristics like race or gender that already receive legal protection," said the study's lead author.

I would say this is a pretty controversial point, but consider experiences from your own lives: have you noticed obese individuals being treated differently in the workplace as far as their terms and conditions in the workplace?

And if they are, at least with regard to employee benefits like health insurance, does not the employer have a legitimate, non-discriminatory reason for not wanting over-weight individuals on their payroll who will make health insurance likely more expensive for everyone. And don't obese individuals tend to be, on average, more absent from work because more frequent health problems?

Shortly after Appellant Eric Thompson’s fiancée filed a discrimination charge with the EEOC against their common employer, the Appellee, Thompson was terminated. The parties to this appeal ask whether the anti-retaliation provisions in Title VII of the Civil Rights Act protect a related or associated third party from retaliation under such circumstances. We hold that that they do, and REVERSE the district court’s grant of summary judgment to the employer . . . .

According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, the defendant terminated Thompson’s employment. Thompson alleges that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contends that performance-based reasons supported the plaintiff’s termination . . . .

Here, a literal reading of section 704(a) suggests a prohibition on employer retaliation only when it is directed to the individual who conducted the protected activity. Such a reading, however, “defeats the plain purpose” of Title VII. There is no doubt that an employer’s retaliation against a family member after an employee files an EEOC charge would, under Burlington, dissuade “reasonable workers” from such an action . . . .

The Compliance Manual expressly states that a person claiming retaliation need not be the one who conducted the protected activity. “Title VII . . . prohibit[s] retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights.” Johnson v. University of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (emphasis added) (quoting EEOC Compliance Manual (CCH) ¶ 8006).

The dissent, on the other hand writes:

From time to time, we should remind ourselves that we are judges, not legislators. This is such a time. Because the majority has rewritten the Civil Rights Act of 1964 to conform it to their notion of desirable public policy, I respectfully dissent.

Another example of a fight between remedialists and literalists in construing the statute. I think the remedialists have the better argument both because Title VII is a remedial statute par excellence, and because, as Noah Zatz commented to the Iona post:

It is a straightforward extension of a race-plus/stereotyping theory:
employers cannot insist that white people have relationships (of any
sort) only with other white people (or Democrats, or Minnesotans). For
a general discussion of these cases, and their connections to other
intergroup "association" claims, [shameless plug warning] see my "Beyond the Zero-Sum Game: Toward Title VII Protection for Intergroup Solidarity," 77 Indiana Law Journal 63 (2002), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=902656.

Marty Malin (Chicago-Kent) writes to tell us about the 30th annual Kenneth M. Piper Lecture this April 8, 2008 at Chicago-Kent School of Law:

Cynthia Estlund from NYU will deliver the 30th annual Kenneth M. Piper Lecture on Tuesday, April 8, 2008, at 11:30 a.m. Central Time at Chicago-Kent College of Law. Cindy will speak on Corporate Self-Regulation and the Future of Workplace Governance. Commentary will be provided by Ron Bloom of the United Steelworkers and former NLRB Member Marsahll Babson of Hughes, Hubbard & Reed . . . .

If you are in the Chicago area, please join us for the lecture and for a pre-lecture perception which will begin at 10:30 a.m. If you are not able to attend in person, please join us for the lecture via the Internet. To reach the webcast, go to www.kentlaw.edu.

Update: Copies of all of the witnesses' testimony and an oral transcript of the hearing are now available at the committee's website.

Today, the Senate Appropriations Committee's Subcommittee on Labor, Health and Human Services, and Education and Related Agencies held a hearing on "The National Labor Relations Board Representation Elections and Initial Collective Bargaining Agreements: Safeguarding Workers' Rights?" NLRB Chairman Schaumber and Member Liebman testified, as did Prof. Gordon Lafer (University of Oregon) and John Raudabaugh (Baker & McKenzie).

Schaumber's testimony was very much in keeping with his new role as Chairman--he mainly stuck to the type of information you see in the NLRB's annual reports. Not surprisingly, Member Liebman was not as constrained, as she laid out a well-developed critique of the Board's performance in these areas (including more cites to academic scholarship than I can note here).

It is perhaps counterintuitive to respond to a call for papers on new
developments in state law by arguing that there should be no
developments at all. With regard to one area of law, however, that is
exactly what I am going to do. More precisely, I argue for one general
development—the elimination of state authority to regulate the
workplace . . . .

Despite sharing concern over the NLRB’s recent decisions, I am
skeptical that transferring authority to states would be an effective
strategy to promote unionization—and outright hostile to the idea as a
matter of principle. Part of the disagreement is likely a difference of
geography. The union perspective of state regulation looks much better
when viewed from Cambridge than from Knoxville. Proponents of state
regulation dream of the pro-union changes that Massachusetts and similar states would implement.
My dreams, however, envision the nightmarish pro-employer changes that
other states would adopt. Freeman suggests that such fears are
exaggerated because the situation cannot get much worse in states with
already low levels of unionization. I am not so optimistic. It is
difficult to imagine that politically powerful employers and
sympathetic state legislators would do nothing when presented with new
authority over the workplace. Indeed, states have already shown what
they would do when unencumbered by federal labor law. A large number of
state employers, which are not covered by the NLRA, have no duty to
recognize unions, and their employees lack any right to engage in
collective action free from employer interference. If those states
regulate labor at all, it is not to restrict employer action, but to prohibit employee activity—including one of the most fundamental rights under federal labor law, the right to strike.

Read it all, it is well worth it. I do not personally agree with Jeff, as he knows, because I believe in this hostile NLRB environment that states can do great service in protecting workers' rights by passing state laws, like Worker Freedom Act, which would outlaw captive audience meetings in the workplace.

And as far as geography, let's just say that I am little deeper in the South than he is.

A former Wal-Mart employee who suffered severe brain damage in a
traffic accident won't have to pay back the company for the cost of her
medical care, Wal-Mart told the family Tuesday.

"Occasionally, others help us step back and look at a situation in
a different way. This is one of those times," Wal-Mart Executive Vice
President Pat Curran said in a letter. "We have all been moved by Ms.
Shank's extraordinary situation."

Eight years ago, Debbie Shank was stocking shelves for the retail giant and signed up for Wal-Mart's health and benefits plan.

After a tractor-trailer slammed into her minivan, the 52-year-old
mother of three lost much of her short-term memory and was confined to
a wheelchair. She now lives in a nursing home.

She also lost her
18-year-old son, Jeremy, who was killed shortly after arriving in Iraq.
When Debbie Shank asks family members how her son is doing and they
remind her that he's dead, she weeps as if hearing the news for the
first time.

Now, I only wish that others would help the Grinches at Wal-Mart "step back and look at a situation in a different way" and provide decent wages and health insurance to their employees. And, yes, I know that ERISA law supported Wal-Mart here, but that is totally besides the point.

Dan Filler of The Faculty Lounge is aggregating data on law professor visitors for 2008-2009. If you or someone you know will be visiting at another school next year (besides the ones already listed in my previous workplace prof move post), please contact him here.

In 1950, at the end of a triumphant
season with the Boston Braves, outfielder Sam Jethroe [right] earned Major
League Baseball's National League Rookie of the Year Award. Limited, as
a consequence of his race, to three full seasons and one partial season
in the big leagues, however, Jethroe fell narrowly shy of the four-year
eligibility requirement for a Major League Baseball pension. And, forty
years later, without the safety net pensions are designed to provide,
Jethroe found himself destitute and homeless. Shortly before his death
in 2001, Jethroe sought, but failed to secure, legal relief from Major
League Baseball. Far
from a minor matter of one retired ball-player's fight for supplemental
income in his golden years, the basic characteristics of Jethroe's suit
- a claim for pension funds denied as a consequence of Jim Crow era
racial discrimination - present a uniquely powerful claim for delayed
racial justice. Analyzed, such claims, coined "Jethroe Claims" by the
author, avoid criticisms routinely launched at delayed racial justice
claims and thus present a model for claims potentially open to scores
of people of color who, by virtue of racial discrimination suffered
during their working years, are deprived pension benefits in their
later years.

This article explores the feasibility of the civil
rights statute 42 U.S.C. Section 1981 as a vehicle for such claims as well as
the substantial obstacle statutes of limitations would pose.
Recognizing, however, an enduring concern among jurists and scholars
alike as to statutes of limitations dismissal of otherwise meritorious
claims seeking to remedy civil rights deprivations, this article argues
Jethroe claims should be spared statutes of limitations application and
considers various approaches to thwarting such application.